UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1481
In Re: SUBPOENA OF AMERICAN NURSES ASSOCIATION,
Movant.
----------------------
GAIL HINTERBERGER,
Plaintiff - Appellant,
and
CATHOLIC HEALTH SYSTEM,
Defendant,
v.
AMERICAN NURSES ASSOCIATION,
Movant - Appellee.
No. 15-1803
In Re: SUBPOENA OF AMERICAN NURSES ASSOCIATION,
Movant.
----------------------
CATHERINE GORDON,
Plaintiff - Appellant,
and
KALEIDA HEALTH,
Defendant,
v.
AMERICAN NURSES ASSOCIATION,
Movant - Appellee.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Roger W. Titus, Senior District
Judge. (8:11-cv-02836-RWT; 8:11-cv-02837-RWT)
Submitted: March 31, 2016 Decided: April 7, 2016
Before DUNCAN and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
J. Nelson Thomas, Jared K. Cook, THOMAS & SOLOMON, LLP,
Rochester, New York, for Appellants. Maureen E. Cones, Bruke H.
Sullivan, AMERICAN NURSES ASSOCIATION, Silver Spring, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gail Hinterberger and Catherine Gordon (Appellants) appeal
the district court’s orders overruling their objections to the
magistrate judge’s opinions and orders relying on Fed. R. Civ.
P. 45(d)(2)(B)(ii) to shift expenses incurred by the American
Nurses Association (ANA) during a proceeding in which ANA was
required to produce certain discoverable materials related to an
action initiated by Appellants against Catholic Health System
and Kaleida Health. Expenses incurred by ANA and shifted to
Appellants included attorney’s fees incurred in relation to the
production of discovery materials, attorney’s fees incurred in
relation to ANA’s motion to shift expenses, and e-discovery
expenses billed by BIA to ANA. Appellants argue that (1) the
magistrate judge improperly considered ANA’s motion to shift
expenses because the motion was untimely; (2) attorney’s fees
are not expenses subject to shifting under Fed. R. Civ. P.
45(d)(2)(B)(ii); * and (3) the magistrate judge improperly shifted
expenses for BIA’s e-discovery services where ANA failed to
disclose the expenses prior to incurring the expenses. We
affirm the district court’s judgments in part, vacate in part,
and remand.
*At the time ANA incurred the expenses at issue, the Rule
permitting shifting of expenses was located at Fed. R. Civ. P.
45(c)(2)(B)(ii).
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I
We review a district court’s decision to extend the
timeframe a party has to file a pleading or motion for an abuse
of discretion. See Lovelace v. Lee, 472 F.3d 174, 203 (4th Cir.
2006). “A district court abuses its discretion when it acts in
an arbitrary manner, when it fails to consider judicially-
recognized factors limiting its discretion, or when it relies on
erroneous factual or legal premises.” United States v. Henry,
673 F.3d 285, 291 (4th Cir. 2012).
Rule 6(b) of the Federal Rules of Civil Procedure grants a
district court the power to extend the time for a party to file
a motion. Fed. R. Civ. P. 6(b)(1). Where a deadline to file a
motion has elapsed, a district court may only extend the
deadline if the time-delinquent party files a motion and
demonstrates excusable neglect for the delay. Fed. R. Civ. P.
6(b)(1)(B).
Here, the magistrate judge determined that ANA’s motion to
shift expenses was untimely, but construed ANA’s “notice of
filing motion for attorney fees and costs or, in the
alternative, motion for leave to file instanter” as a motion to
extend under Fed. R. Civ. P. 6(b)(1)(B). We conclude that the
magistrate judge’s construction does not constitute an abuse of
discretion. ANA’s notice filing cited Fed. R. Civ. P. 6(b),
argued that excusable neglect supported extending the deadline,
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and requested that the court “grant leave to file its Motion for
Attorneys’ Fees and Costs instanter.” Further supporting the
magistrate judge’s construction, ANA attached an affidavit from
its lead attorney identifying the cause of ANA’s delay in filing
its motion.
Turning to whether ANA satisfied the standard for obtaining
an extension to file its motion for expenses, “‘excusable
neglect’ under Rule 6(b) is a somewhat ‘elastic concept’ and is
not limited strictly to omissions caused by circumstances beyond
the control of the movant.” Pioneer Inv. Serv. Co. v. Brunswick
Assoc. Ltd. P’ship, 507 U.S. 380, 392 (1993). Although a party
typically satisfies the standard for demonstrating excusable
neglect by demonstrating that the delay is the result of
circumstances beyond the party’s control, courts have recognized
that “‘excusable neglect’ may extend to inadvertent delays.”
Id. Factors for a court to consider when evaluating whether a
party has demonstrated excusable neglect for a delay include (1)
“the danger of prejudice to the [other party]”; (2) “the length
of the delay and its potential impact on judicial proceedings”;
(3) “the reason for the delay, including whether it was within
the reasonable control of the movant”; and (4) “whether the
movant acted in good faith.” Id. at 395.
Neither the magistrate judge nor the district court
articulated an analysis of the factors governing an excusable
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neglect finding. Nonetheless, we conclude that the record
sufficiently supports a finding of excusable neglect. Regarding
the first factor, Appellants present no arguments suggesting
that they were prejudiced by the delay and nothing in the record
suggests that they suffered prejudice. On the second factor, a
delay of, at most, 100 days is not lengthy in the context of
litigation that lasted 3.5 years, and the delay had no
discernable impact on the judicial proceedings where it occurred
after the discovery matter was resolved and after the district
court had already determined what types of expenses would be
shifted to Appellants. Regarding the third factor, the record
suggests that the delay was due to medical issues suffered by
the lead attorney for ANA and confusion regarding when ANA’s
motion was due. Finally, nothing in the record suggests that
ANA acted in anything but good faith. Accordingly, we conclude
that the extension of the deadline for ANA to file its motion to
shift expenses did not constitute an abuse of discretion.
II
We review de novo any underlying legal interpretation
regarding the scope of a Federal Rule of Civil Procedure. Payne
ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 203 (4th Cir.
2006). However, we review “decisions that fall within that
scope for an abuse of discretion.” Id.; see also Carefirst of
Md., Inc. v. Carefirst Pregnancy Ctr., Inc., 334 F.3d 390, 396
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(4th Cir. 2003) (reviewing order in course of discovery for
abuse of discretion). A district court abuses its discretion if
its conclusion is guided by erroneous legal principles or rests
upon a clearly erroneous factual finding. Westberry v. Gislaved
Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999) (citation omitted).
Under Fed. R. Civ. P. 45, a party to litigation may serve a
subpoena for the production of discoverable material on a non-
party to the litigation. In turn, the non-party may contest the
subpoena, and if a court orders production on the subpoena, “the
order must protect a person who is neither a party nor a party’s
officer from significant expense resulting from compliance.”
Fed. R. Civ. P. 45(d)(2)(B)(ii (emphasis added). Although Fed.
R. Civ. P. 45 does not explicitly define what constitutes an
“expense resulting from compliance,” we conclude that attorney’s
fees incurred by the non-party that are necessary to a discovery
proceeding under Rule 45 are expenses that may be shifted to the
discovery-seeking party. First, applying the cannon of
construction of in pari materia and looking toward Fed. R. Civ.
P. 45(d)(1), which governs shifting expenses in situations where
a discovering party places an undue burden on the non-party,
attorney’s fees can constitute an expense shifted to the
discovering party. See Fed. R. Civ. P. 45(d)(1) (“[A]n
appropriate sanction . . . may include lost earnings and
reasonable attorney’s fees.”). Second, the 1991 amendments to
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Fed. R. Civ. P. 45 were adopted in an effort “to enlarge the
protections afforded persons who are required to assist the
court.” Legal Voice v. Stormans Inc., 738 F.3d 1178, 1184 (9th
Cir. 2013). Shifting attorney’s fees necessary to discovery is
consistent with this purpose, as well as the amendment’s purpose
of encouraging discovering parties to keep discovery requests
narrow and specific to the issues at hand in the underlying
litigation.
Although we conclude that attorney fees incurred by non-
parties may be shifted under Fed. R. Civ. P. 45(d)(2)(B)(ii),
the shifting of attorney’s fees is only appropriate where the
attorney’s fees are actually necessary to a non-party complying
with a discovery order. Here, the magistrate judge specifically
concluded that attorney’s fees stemming from the preparation of
discovery status reports, attendance at discovery hearings,
privilege review of discovery materials, and HIPPA review of
discovery materials were all necessary to ANA’s compliance with
the discovery order, and nothing in the record overcomes this
conclusion. However, ANA was also permitted to recover attorney
fees for time spent “outlin[ing] and draft[ing] the motion for
attorney fees.” Legal fees of this variety were plainly not
necessary to ANA’s compliance with the discovery order as they
were incurred after discovery was completed and as a result of
ANA’s effort to recover fees, rather than in an effort to
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produce discoverable material. Accordingly, ANA’s attorney’s
fees incurred in pursuit of attorney’s fees were not subject to
shifting under Fed. R. Civ. P. 45(d)(2)(B)(ii), and it was error
to shift these fees to Appellants. Therefore, while we affirm
the shifting of attorney’s fees necessary to the production of
discovery materials, we vacate those portions of the magistrate
judge’s opinions and district court’s opinions that assigned
attorney’s fees incurred by ANA in pursuit of their motion to
shift expenses and remand for correction of the fee shifting
amount. Similarly, miscellaneous expenses incurred after the
completion of discovery in an effort to recover fees are not
subject to shifting under Fed. R. Civ. P. 45(d)(2)(B)(ii).
Thus, we also vacate the portion of the order that shifted FedEx
and PACER expenses associated with the motion to shift fees.
Finally, the magistrate judge shifted expenses for BIA’s e-
discovery services. In shifting these expenses, the magistrate
judge found that (1) ANA advised Appellants that producing the
requested discovery would entail significant expense; (2)
Appellants were dilatory in communicating with ANA after the
district court ordered discovery; and (3) Appellants changed the
scope of the requested discovery, increasing BIA’s charges.
Although Appellants dispute these findings on appeal, nothing in
the record demonstrates clear error below. Accordingly, we
affirm the shifting of expenses for BIA’s e-discovery services.
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Consistent with the aforementioned reasoning, we affirm the
extension of the deadline for ANA to file its motion to shift
expenses, the shifting of attorney’s fees necessary to the
production of discovery materials, and the shifting of expenses
for BIA’s e-discovery services. We vacate those portions of the
magistrate judge’s and district court’s opinions that shifted
attorney’s fees and expenses stemming from ANA’s efforts to
shift expenses to Appellants. We remand this case to permit the
district court to recalculate the shifting of expenses to
exclude attorney’s fees and expenses not necessary to ANA’s
compliance with the discovery order. We dispense with oral
argument because the facts and legal contentions are adequately
expressed in the materials before this court and argument would
not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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